Know Your Augmented Reality Property Rights

Photo illustration by Slate. Photo by Lyndsey Marie/Unsplash.

In 2010, London-based artist and filmmaker Keiichi Matsuda produced a short named Augmented (Hyper) Reality: Domestic Robocop. The film depicts a strange future world in which smart glasses, or perhaps some yet-to-be-invented devices, impose gaudy commercial ads on the domestic surfaces in our homes and private spaces. Virtual distractions compete for attention, obscuring our view of the real, physical world to the point of unrecognizability.

Matsuda’s vision is undoubtedly an extreme one, but his cynical prophesying was not completely off the mark. Augmented reality has rather more up its sleeve than Snapchat filters and Pokémon Go. Back in 2013, Google told the government that it soon expected to use technology to serve ads on external things like refrigerators and car dashboards.

Though Google Glass may not have taken off, it seems like one way or another, ads will soon superimpose themselves on our physical environments. At the Facebook developers’ conference in May, augmented reality was chosen as a unifying theme, and a January report from Digi-Capital predicts that revenue from AR will soon overtake that of its less accessible sibling, virtual reality. Digi-Capital also forecasts that there will be 3.5 billion AR-enabled devices by 2022, and the industry will be worth as much as $85 billion.

We were unprepared for many of the consequences of social media. Now is the time to address the many questions raised by the coming ubiquity of augmented reality. Of particular concern is how AR will challenge traditional property rights and stretch interpretations of free speech.

Picture this. It is the near future and you are strolling home wearing smart glasses, casually browsing nearby augmentations. While some attach historical information to local buildings (maybe you learn that your local bar which was the site of many bygone liaisons dangereuses), others provide updates and information from local government. Many are just advertising banners displaying offers from nearby stores. Then you see one newly affixed to your own home. You don’t like the banner, or the product. What can you do? Some are already arguingthat should this scenario happen, you wouldn’t have the right to remove it at all.

Of particular concern is how AR will challenge traditional property rights and stretch interpretations of free speech.

To understand this argument, it’s helpful to have a clearer understanding of what this type of augmentation actually is. Without going into technical detail, it is perhaps easiest to think of it as the placing of virtual objects in physical space using GPS coordinates. In effect, the augmenting coder chooses to associate digital content with an actual physical place or space-filling object.

This content, lawyer Brian Wassom has put forward, is an expression akin to speech. By augmenting our reality, the coder is using a kind of digital speech. By this understanding, I should be free to code in whatever way I choose, unless I augment your environment with something demonstrably false, criminal, or defamatory. In other words, augmented reality should be protected by the First Amendment, and this has already been upheld by one Wisconsin U.S. district judge.

Even if it’s on my private property? you might ask. The people making this argument would say yes—because an augmentation is not really there. It is not on your property at all. It might appear so, but it actually fails to intrude on physical space in a way that would activate your usual property rights.

If this is correct, then the digital space around (maybe even inside) your property could become a kind of common land, flinging the gates open to what Wassom calls “a quantum leap in the pervasiveness of commercial messages” in his book Augmented Reality Law, Privacy, and Ethics. In this controversial interpretation of the law, every street, every surface, every portion of space with a GPS coordinate becomes free real estate for those with the ability and the will to augment, just like in Matsuda’s surrealist video.

This debate forces us to consider more deeply the notoriously complex concept of property. In owning physical property, do we also take ownership of all associated intangibles, like GPS coordinates? To avoid a tragedy of the commons, I believe it is critical that we do. But how can I argue that my right to physical property should trump your freedom to augment the real environment with virtual objects? Why should I own all derivative spaces?

Professor Margaret Radin, a distinguished legal scholar and Henry King Ransom professor of law emerita at the University of Michigan, believes that our property is bound up with our identity and that this implies that we should have control over the associations forged between it and other things. I may not enjoy a certain type of beer, politician, or TV show, so when a key asset of mine is strewn with their branding, it is harmful to me and the way I wish to express myself as a person.

The association between people and their property becomes perhaps more vivid when we consider the ethical soundness of augmenting a family home with something overtly sexual, or a religious site with a video that preaches against worshippers’ values.

We’ve already seen this dynamic play out, albeit not in a court of law. In 2016, the Holocaust Museum in Washington asked visitors to stop catching Pokémon for the very reason that it was (so obviously) an inappropriate association. The placement of virtual items can affect our very real sensibilities, and eventually a public petition with more than 18,000 signatories forced game maker Niantic to remove the “PokeStop.”

But imagine that that dispute became a legal case. For one thing, we can already own intangible things, like domain names. So it seems imminently sensible that we should also have rights over the coordinates that map directly onto our true physical property. Yet at the moment, this is far from settled. Apps like WallaMe allow users to leave “hidden messages” in almost any location. Bit by bit we are being augmented, but we’re mostly blissfully unaware.

As with many similar conundrums, it is worth extrapolating out to the most absurd extension of each potential. In this instance, such an exercise yields a choice between a future in which our property remains so in “all possible worlds” or something that feels much more chaotic, like an indefinitely extended version of the M&M’s augmented reality takeover of Times Square.

Whichever is eventually judged to be for the best, it’s clear we must make this judgment swiftly before we’re so heavily augmented that it is difficult—if not impossible—to row back.